Personal Injury Cases in Small Claims Court: How to Calculate Your Damages

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Personal Injury Cases

Personal injury cases are less likely than other cases to end up in small claims court. First of all, the stakes are often higher in cases where someone is injured which means lawyers are more likely to get involved. In addition, many states require that personal injury cases be filed in formal court and do not allow them in small claims court. In other states, a small claims judge can award an injured party only the dollar amount of the person's out-of-pocket losses (doctors' bills, lost time from work), but doesn't have the power to award an additional amount to cover the injured victim's pain and suffering, no matter how legitimate. Before filing even a minor personal injury case in small claims court, be sure you check your local rules. However, some small personal injury cases do end up in small claims court. Dog bite cases are one common example.

Try to settle or mediate your claim. If you are seriously injured, you'll almost always want to sue for more than the small claims maximum. But to gain a fair recovery, you may not need to sue at all. Many people successfully negotiate or mediate a satisfactory settlement with an insurance company. For information on how to do this, see How to Win Your Personal Injury Claim, by Joseph L. Matthews (Nolo).

Calculating the amount of your claim. To determine how much to sue for, add up the dollar amount of the following losses:

Out-of-pocket medical costs, including medical care providers

$ _______________

Loss of pay, or paid time off, for missing work

$ _______________

Pain and suffering

$ _______________

Damage to property

$ _______________

 

 

TOTAL $ _______________

Let's look at each of these categories in a little more detail.

Medical or hospital bills

The amount of your medical and hospital bills, including transportation to and from the doctor, is routinely recoverable as long as you have established that the person you are suing is at fault. However, if you are covered by health insurance and the insurance company has already paid your medical costs, you will find that your policy says that any money you recover for these costs must be turned over to the company. Often, insurance companies don't make much effort to keep track of, or recover, small claims court judgments, as the amounts of money involved don't make it worthwhile. Knowing this, many judges are reluctant to grant judgments for medical bills unless the individual can show he or she personally paid out of pocket for the treatment. But if you had uninsured expenses or deductible payments, by all means include them.

Loss of pay 

Loss of pay or paid time off as a result of an injury is viewed in a similar way. Assume the cocker spaniel down the block lies in wait for you behind a hedge and grabs a piece of your derriere for breakfast, and as a result you miss a day of work getting yourself patched up. You are entitled to recover any lost pay, commissions, or vacation time. However, if your job offers unlimited paid sick time, and therefore you suffer no loss for missing work, you have nothing to recover.

Pain and suffering

The third area of recovery is for what is euphemistically called "pain and suffering." When you read about big dollar settlements, a good chunk of the recovery almost always falls into this category. No question, recovering from some injuries really is a painful, miserable ordeal for which compensation is reasonable. It is also true that in the hands of an aggressive lawyer, "pain and suffering" can become an excuse for an inflated claim.

But suppose that you have suffered a minor, but painful, injury and you want to attempt to recover compensation for your discomfort in small claims court. How much should you ask for? There is no one right answer. When valuing a client's pain and suffering, a lawyer will typically sue for three to five times the amount of the out-of-pocket damages (medical bills and loss of work). Therefore, if you were out of pocket $500, you might wish to ask for $1,500, the overage being for "pain and suffering." To get this, you'll have to convince the judge that you have suffered real pain and inconvenience. The best way to do this is to present bills for medical treatment. If the judge concludes you suffered a real injury, he or she will be more likely to add an amount for "pain and suffering." This is why lawyers routinely encourage their clients to get as much medical attention as is reasonably possible.

Example 1: Mary Tendertummy is drinking a bottle of pop when a mouse foot floats to the surface. She is immediately nauseated, loses her lunch, and goes to the doctor for medication. As a result, she incurs a medical bill of $150 and loses an afternoon's pay of an additional $150. She sues the soda pop company for $900, claiming that the extra amount is to compensate her for pain and suffering. This may well be considered to be reasonable depending on the judge.

Example 2: The same thing happens to Roy Toughguy. But instead of losing his lunch, he just tosses the soda pop away in disgust and goes back to work. A few weeks later he hears about Mary's recovery and decides to sue–after all, he could use $900. How much is Roy likely to recover? Probably not much more than the price of the soda pop–because he didn't see a doctor and wasn't too upset by the incident, the judge is likely to conclude he suffered little or no injury.

Include any property damage in your claim. Often a personal injury is accompanied by injury to property. Thus, a dog bite might also ruin your pants. If so, include the value of your damaged clothing when you determine how much to sue for.

Punitive damages

Formal trial courts have the power to award extra damages (over and above out-of-pocket losses and pain and suffering) if an injury is caused by the malicious or willful misconduct (often a fraudulent or criminal act) of the defendant. When the defendant is wealthy, these damages–which are designed to punish the defendant–can run into the millions. About half the states do not allow punitive damages (sometimes called "exemplary damages") to be awarded in small claims. But even in those states where it is theoretically possible to receive punitive damages, small claims court's low dollar limit largely rules them out, except in a few instances where specific dollar amounts are established for bad checks or failure to return a tenant's security deposit on time (see Chapter 20). If you believe you have been injured by conduct wretched enough to support a claim for hefty punitive damages, see a lawyer.

Emotional or Mental Distress Cases

There are all sorts of ways we can cause one another real pain without even making physical contact, especially in increasingly crowded urban environments. For example, if I live in the apartment above you and pound on my floor (your ceiling) for an hour at 6:00 a.m. every day, I will probably quickly reduce you to a raving maniac. What can you do about it short of slashing my tires?

One remedy is for you to sue me in small claims court based on the fact that my actions constitute the intentional infliction of emotional distress. But how much should you sue for? Unfortunately, it's impossible to provide a formula. It depends on how obnoxious my behavior is, how long it has gone on, and how clearly you have asked me to cease it (this should be done several times in writing). And if this isn't vague enough, it will also depend greatly on the personality of the judge, who may be very skeptical of all neighbor disputes, thinking they don't belong in court in the first place. At the very least, you'll need to convince the judge you are an extremely reasonable person and your neighbor is a true boor before you will be eligible for any compensation.

One way to try to convince the judge you aren't a hypersensitive complainer is to sue for a reasonable amount. Thus, I would normally advise against suing for your state's small claims maximum, or anything close to it, except in the most extreme cases.

Choose mediation when neighbors are involved. The process of filing, preparing, and arguing a lawsuit tends to make both sides even madder than they were previously. And, of course, the losing side is likely to stay mad for a long, long time. This may be fine if you are suing a large company or someone you are never likely to interact with again, but given the high value most people place on good relations with neighbors, it's usually best to at least try to settle your case through mediation before going to court.

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